Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR226389
Richman, J.
Subdivision (d) of Penal Code section 368 (section 368(d)) provides in pertinent part: “Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud . . . with respect to the property . . . of an elder or dependent adult, and who knows or reasonably should know that the victim is an elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars . . . .”
Statutory references are to the Penal Code unless otherwise indicated.
A jury found defendants James Lloyd Clites and Mark Lewellyn Cox (when referred to collectively, defendants) guilty of violating this provision by committing theft from Lillie Shelton, Cox’s mother. The jury also found true an enhancement allegation that the value of the property taken from Ms. Shelton was more than $50,000 and $100,000 (§§ 1203.045, subd. (a), 12022.6). Clites was also found guilty of conspiring to violate section 368(d) (§ 182, subd. (a)(1)). The trial court sentenced each defendant to serve an aggregate term of three years in state prison.
At the time, section 12022.6, subdivision (a)(1) provided that a defendant whose crime involved the loss of more than $50,000 was to be sentenced to an additional year of imprisonment. In 2007, the amount was raised to $65,000. (Stats. 2007, ch. 420, § 1.) Subdivision (a) of section 1202.045 specifies that “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person convicted of a crime of theft of an amount exceeding one hundred thousand dollars ($100,000).”
After Cox and Clites filed separate timely notices of appeal, we ordered the appeals consolidated. Defendants raise a myriad of claims of evidentiary and instructional error. We conclude that one instance of error in the admission of evidence, combined with instructional error, together qualify as prejudicial, compelling reversal.
BACKGROUND
The Evidence
The essential storyline is not in dispute. But the inferences and conclusions to be drawn were—and continue to be—contested. What actually happened was virtually stipulated, but why it occurred, and the accompanying mental state of the three major actors, never went unchallenged. So it is here. For present purposes, we adhere to the standard rule of criminal appellate procedure that obliges us to review the record most favorably to the judgment and the prosecution. (People v. Moon (2005) 37 Cal.4th 1, 22; People v. Maury (2003) 30 Cal.4th 342, 403.)
At the time of trial, the victim, Ms. Shelton, was starting to show a loss of her full mental and physical faculties. Her testimony reflected a diminished and sometimes unreliable memory, even of recent events. Her memory was at times inconsistent, and lacked the ability to recall corroborative detail. Nevertheless, her competence to give testimony was never challenged.
As to the latter, Cox testified that his mother had rheumatoid arthritis, failing eyesight, diverticulitis, and congestive heart failure requiring a pacemaker. In addition, according to Cox, Ms. Shelton had a stroke and was effectively bed-ridden.
Application of the rule of evidentiary review means we accept that the jury, as was its right, accepted those parts of Ms. Shelton’s testimony adverse to defendants, while rejecting the parts that favored them. (People v. Thornton (1974) 11 Cal.3d 738, 755; People v. Robinson (1964) 61 Cal.2d 373, 389; People v. Crooker (1956) 47 Cal.2d 348, 355.) The same is true for evidence from the defense. (People v. Silva (2001) 25 Cal.4th 345, 369; People v. Wader (1993) 5 Cal.4th 610, 641.) Moreover, we must also accept whatever adverse inferences the jury could have drawn from Ms. Shelton’s testimony, as well as all other evidence produced at the trial. (People v. Carter (2005) 36 Cal.4th 1215, 1258; People v. Combs (2004) 34 Cal.4th 821, 849.) With these principles in mind, we have determined that the record supports the following recitals:
It is uncontradicted that in April 2005 Ms. Shelton had more than $200,000 in deposit accounts. Ms. Shelton was still living at her Vacaville home but, at age 73, she required the assistance of in-home care. She and her son attended services at a church in Antioch, where defendant Clites was the pastor. Ms. Shelton had known Clites for three years, and had given him money to help the homeless. Ms. Shelton had previously talked of donating her daughter’s life insurance money to Cox, or to Clites.
Most of the money represented insurance proceeds that came to Ms. Shelton after her daughter, Cox’s sister, died after returning from active duty with an Air Force medical unit in Afghanistan. Ms. Shelton testified that she planned to donate the money to charity, in accordance with her daughter’s wishes.
The previous year, Clites had introduced Ms. Shelton to an attorney who drafted a will and trust leaving a portion of her estate to Clites’s church. However, when presented with the finished documents, Ms. Shelton refused to sign them. The attorney’s impression was that Ms. Shelton was “sharp” mentally and “clearly wanted to maintain control over her own affairs.”
On April 27, 2005, defendants accompanied Ms. Shelton to a notary, and she executed a document giving defendants’ the power of attorney over her affairs. The document was admitted in evidence at trial and is a part of the record on appeal. The document is entitled “California General Durable Power Of Attorney” (see Prob. Code, § 4401), and governed all aspects of Ms. Shelton’s existence except health care decisions. Ms. Shelton did not understand what she was signing, and testified that she was “completely out of it.” Prior to that day she had never discussed the need for such a document with either defendant.
Ms. Shelton executed a separate power of attorney for medical decisions, giving this power to Clites.
According to the notary, the transaction took about 45 minutes. Cox filled out most of the document and explained its contents to his mother. As she initialed the various provisions as he explained them, Ms. Shelton told him, “Yes, I trust you.” The notary detected no threats or coercion, and believed that Ms. Shelton was acting voluntarily. After Ms. Shelton signed the actual document, but before she could complete the notary’s certification, she became ill and was taken by ambulance to a hospital.
Three days later, her son took her to the credit union at Travis Air Force Base, where she signed some more papers. Thereafter Ms. Shelton noted that large amounts were being withdrawn from her account at the bank, and testified that she did not intend for either defendant to have any of this money. Eventually, the withdrawals exceeded $100,000, which prompted her to notify police.
An employee at the credit union testified that she had “helped” Ms. Shelton on several previous occasions. On April 30, 2005, Ms. Shelton and Cox came in, and both of them requested that Ms. Shelton’s account of approximately $108,000 be closed and the money in it transferred to Cox’s account. Because this would involve penalties for the early termination of some certificates of deposit, the employee asked Ms. Shelton if she was sure she wanted to do this. Ms. Shelton replied that she was. The employee made the transfer. Defendant Clites was designated the beneficiary of the account should Cox and Shelton die. The employee believed Ms. Shelton knew what she was doing, though there were periods when she seemed confused.
Before the transfer, Cox had only $187.50 in his account.
The employee’s supervisor, who likewise was familiar with Ms. Shelton, also thought she was “coherent,” and that the transaction was “consistent” with what she, Ms. Shelton, was telling the other employee. Nevertheless, the supervisor was concerned and alerted the credit union’s “compliance” office, which started an internal investigation.
On May 2, 2005, Cox withdrew $104,121 from his Fairfield account and deposited it in a new account he opened that day at an Antioch bank. Four days later, Cox wrote eight $10,000 checks on the account, four to himself and four to Clites’s church. All of the checks were cashed between May 11 and July 25, 2005.
Before any of the checks were cashed, Vacaville Detective Hosking began his investigation of Ms. Shelton’s complaint to the police, and he had a number of telephone conversations with the defendants. Chronologically, on May 3, 2005, Clites first told Hosking that the transferred money was “not supposed to be touched,” that it “was to remain there for her . . . until . . . she passes,” because “It’s for . . . when she dies, you know that her affairs are dealt with according to her wishes and, and that’s the whole purpose of it [i.e., the power of attorney].”
On May 10, Hosking again spoke with Clites. Clites told Hosking he knew nothing about the checks, had no idea what Cox was doing, and had urged Cox to return the money. That same day, when Cox telephoned, Hosking bluntly told Cox, “Return the money or go to jail . . . . Simple as that, the money needs to come back to your mom or you’re gonna get arrested.” Cox told Hosking that he had done nothing wrong, still had the checks, and would not return the money.
Hosking spoke again to Clites on the telephone on May 31, 2005. Clites told Hosking that he told Cox “if he gave me the money, I was gonna give it to his mother.” On August, 3, learning that Clites had deposited the checks to his church, Hosking met with Clites. Clites acknowledged he had deposited Cox’s checks, but he said he did so because “he had been assured by Mr. Cox that the money was donated to his church by his mother so he deposited it and used the funds.”
Without objection, one of the caregivers recounted a statement by a nurse attending Ms. Shelton twice a week that she, Ms. Shelton, was “borderline dementia.” The caregiver herself testified that Ms. Shelton “seemed pretty alert,” but had times when “she’d get a little bit confused.” The caregiver further testified that on the day defendant Cox came to his mother’s home before taking her to notarize the power of attorney, Ms. Shelton resisted, as she had for some time. Cox, however, was “calm” but “very persistent and wanting her to go through with this.”
Defendant Cox testified that he had known Pastor Clites for 20 years, and he is “like a second father to me.” His mother executed the power of attorney of her own free will, knowing that he would give much of the money to Clites’s mission, as she wished. However, the idea of the power of attorney was not Ms. Shelton’s idea: “[I]n meeting with Pastor Jim and I . . . we brought up the power of attorney . . . . [S]he wanted to try to find some way to transfer the money over to the church and so we brought up the power of attorney.”
In fact, Clites seems to have been the one—if not the only—stable relationship Cox had enjoyed for a long time. His contacts with his two brothers were problematic. This was even more true of his dealings with his mother, who at one point had him arrested, possibly for violating a restraining order. While the restraining order was in effect, Cox did not speak with his mother for a year. And just before the events leading to this prosecution, Cox was, as he put it, “[living] with the mental health people” and largely existing on “social security” “disability because of my neck injury.” Cox had previously lived with his mother until “My mental health [people] pulled me away from my mother because they thought that was not beneficial and they moved me . . . .”
Cox further testified that the reason he went with his mother to the credit union on April 30 was that “I got a phone call early in the morning, and my mom was telling me to come over and pick her up, that she wanted me to go to the bank and donate money to the church.” Cox reiterated on the stand what he told Detective Hosking—that he thought he had not acted wrongly, but only in accordance with his mother’s oft-expressed wishes. Cox further testified that Clites had not talked with him about moving Shelton’s money to a new account, and knew nothing about the move.
Cox described his relationship with his mother as “strained or difficult.” On the stand, Cox gave the impression that he was either indifferent or ignorant about his mother’s financial affairs, but he conceded that at one point she had made a promise and he was going to hold her to it: “She made a promise over my sister’s grave . . . that she was going to donate the money, so I expect my mom to keep that promise.” “I wanted my mom to keep with her . . . obligation of her saying to Pastor Jim, me and other people that she was going to donate the money in my sister’s name. I wanted my mom to honor her first statement. I expect my mom to be honest and true.” Even after he heard “through the grapevine” she that wanted the money returned, he refused, because “I have to honor God before I honor my mom.” “Once it was promised by her heart over my sister’s grave to God . . ., I have to do that . . . . [W]hen she said that money was going to be donated . . . that has to be honored.”
Finally, Cox testified that he did not consider what he did stealing. He did concede that he spent some of the money from his mother for dental work and a $4,000 computer.
Defendant Clites did not testify on his behalf.
The Instructions
The jury was instructed on two theories of guilt, theft by larceny and theft by false pretense, specifically with CALCRIM 1800 and 1804 as follows:
“I’m going to give you the definition of the crime of theft. This is theft by larceny. To prove that the defendants are guilty of the crime of larceny, theft by larceny, the People must prove, number 1, the defendants took possession of property that was owned by someone else. Number 2, the defendant took the property without the owner’s consent. Number 3, when the defendants took the property, they intended to deprive the owner permanently; and number four, the defendants moved the property even a small distance and kept it for any period of time, however brief.”
“The elements of theft by false pretense are as follows: [¶] Number 1, the defendants knowingly and intentionally deceived a property owner by false or fraudulent representation or pretense. Number 2, the defendants did so intending to persuade the owner to let the defendants take possession and ownership of the property. [¶] Number 3, the owner let the defendants have possession and ownership of the property because the owner relied on the representation or pretense. And finally number four, when the defendants got the property, they intended to deprive the owner of it permanently. That’s theft by false pretense.
“You may not find the defendants guilty of this crime unless the People have proved that the false pretense was accompanied by either a writing or false token or there was a note or handwritten [sic] by the defendants or testimony from two witnesses or testimony from a single witness along with other evidence that supports the conclusion that the defendants made this pretense.
“The term property includes money, labor, or real or personal property. A false pretense is any act, word, symbol, or token the purpose of which is to deceive. Someone makes a false pretense if intending to deceive he does one or more of the following:
“Either gives information that he knows is false or makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth, or does not give information when he has an obligation to do so, or makes a promise not intending to do what he promises.
“Proof that the representation or pretense was false is not enough by itself to prove that the defendants intended to deceive. Proof that the defendants did not perform as promised is not enough by itself to prove that the defendants did not intend to perform as promised. A false token is a document or object that is not authentic but appears to be and is used to deceive.
“An owner relies on a false pretense if the falsehood is an important part of the reason the owner decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor that the owner considers in making the decision. If the owner gives up property sometime after the pretense is made, the owner must do so because he or she relies on the pretense.”
The Parties’ Trial Theories
The prosecutor’s argument was that Ms. Shelton signed the power of attorney because she was vulnerable, uncertain what to do with the money, and trusted defendants, all of which they knew. That instrument, which was the token or writing needed for theft by false pretense, obligated defendants to act in her best interest. “If she transfers her money based on that false pretense, the law recognizes that that’s not valid consent, so it also falls under” theft by larceny. Instead of leaving the money in the joint account, when he heard that Ms. Shelton wanted to get her money back, Cox moved the funds to a different bank in a different city and put the money in an account that was in his name alone.
According to the prosecutor, “Look at what they did with the money. Look at how it was done. There is no possible way that Mr. Cox could have believed that he had a lawful right to that money just because it was in a joint account. That joint account had been fraudulently created because Ms. Shelton was relying on [the] power of attorney, she was relying on inherent trust in these two defendants when she made that transfer. That’s not valid. That’s not what she ever intended.” And, the prosecutor argued, Clites repeatedly told Detective Hosking the money was Ms. Shelton’s and he would not keep any of it, but he deposited the checks and refused to give it back. Meanwhile, Cox was depositing the checks made out to him in different accounts, and not giving the entire $100,000 to Clites as was his claimed intent.
Cox’s closing argument was that Ms. Shelton’s decision to execute the power of attorney was a deliberate, considered move by a person who was, to judge by all the objective evidence, fully competent. Cox argued that “no crime was committed” because he “had a good faith claim that her money was his.” Because he had that good faith belief—that he had a lawful claim to the money because he had acted pursuant to the power of attorney—he did not have the mental state required for theft.
Clites’s counsel emphasized that once Shelton set the process in motion, the how and why the money came to Clites was immaterial: “Once you make a gift to somebody, if they refuse to return it, it’s too late. There is no crime. . . . [¶] So when Ms. Shelton is conscious Sunday night that she gave her son money but changed her mind and regretted doing it, that’s a clear indication that what she did was make a gift that she regretted. But there is no criminal liability either from his refusal to return it on May 2nd, May 3rd, or thereafter or on anybody else’s decision to not return it if you believe the evidence shows it was a gift.” Clites knew nothing about Cox moving the money from the joint account. Cox made that decision “on his own,” in the hope that “he would be able to somehow please Pastor Clites.”
Clites’s counsel further argued that there was no theft by larceny “because the establishment of the joint account by itself explicitly authorized Mr. Cox to take the money.” If Cox was guilty of theft by larceny, that crime was completed when he moved the money out of the joint account in Fairfield and deposited in his own account at the bank in Antioch. This was important, because it cleared Clites of the conspiracy charge: “I think the evidence shows Pastor Clites never made any agreement to join any conspiracy. I think the evidence shows Pastor Clites said that he would try to help persuade Mr. Cox to return the money, and if any of the money got to him, he would return it, and then he changed his mind. [¶] But if you disagree with my opinions but you believe on May 3rd when he was put on notice that some of the money might be coming his way and then overt acts were taken, they are without legal effect, because the crime underlying the conspiracy is completed.”
Nor could Clites be guilty of theft by false pretense, because there was no false pretense: “What false pretense? What was promised to Ms. Shelton? What evidence do they have that something was promised to her that was not meant at the time? Because in order to have the false pretense have legal effect, you have to give a false statement. [¶] Ms. Shelton said she doesn’t know, doesn’t remember anything about how it was she came to transfer the money. She doesn’t remember her son saying anything to her or anybody at the bank saying anything to her.”
The jury deliberated for less than six hours before finding defendants guilty as charged. As noted, both defendants appealed, and we granted defendants’ motion to consolidate their separate appeals and their requests to join in the arguments made in each other’s brief.
DISCUSSION
This appeal has generated voluminous briefs by each of the parties. To a certain extent, the briefs of Clites and Cox overlap, as in their arguments as to why the prosecution’s theories as to their guilt are defective. Not all of the issues raised in defendants’ briefs need to be, or will be, discussed at length in this opinion. We have organized the following discussion with a view to simplifying the issues, and presenting them in the most logical manner.
The Trial Court Did Not Err In Allowing Evidence Concerning The Power Of Attorney
Clites contends that the trial court erred in admitting “testimony and exhibits relating to the existence and legal significance of the Power of Attorney” because this evidence was “irrelevant to any factual dispute raised by the criminal charges and the court had no discretion to admit it under Evidence Code section 210.” Clites objected to admission of the document on the grounds of “relevance and [Evidence Code] 352 . . . . I lodged this objection earlier that I didn’t believe since it wasn’t used in any manner to effect theft in this case, it’s irrelevant.” But believing does not necessarily make it so. And Clites’s contention has no merit.
The power of attorney was directly relevant to the prosecution’s theories of how defendants violated section 368(d). Indeed, the document was no less relevant to both defendants’ theories of why no crime was committed. The document was clearly the basis for all three parties to launch their respective arguments about what the document stood for, what the signatories intended, and the consequences, if any, of what occurred. There was no error in admitting it. The same reasoning establishes that the trial court did not abuse its discretion under Evidence Code section 352 in concluding that the probative value of the document outweighed any potential prejudice.
The specific “testimony” about the document Clites attacks came from three witnesses. Regarding the first and second, he states in his brief: “Keri [Mahaffey] of the Travis Credit Union testified for the prosecution that the bank would honor a power of attorney so long as it met the requirements of the Probate Code. (I RT at 187) She identified a power of attorney executed by Shelton to [defendants] that had been sent to the credit union. (I RT at 187; People’s Ex. 1.) The service administration of the credit union had questioned the document’s validity. The court asked the prosecution for an offer of proof regarding this testimony and the prosecutor responded that she wanted to prove that Cox had unsuccessfully tried to use the Power of Attorney and when that did not work, he brought Shelton into the bank the next day. (I RT at 212-213.) The court found no undue prejudice and admitted the testimony, over defense objection. (I RT at 213.) The notary public testified in detail as to Shelton’s voluntary signing of the power of attorney documents on April [ 27], 2005. (I RT at 231-237.)” (Fn. omitted.)
To begin with, Clites’s narrative has significant omissions. Moreover, it is not accompanied by specific arguments as to why admission the testimony of these two witnesses was prejudicial to Clites. The quoted passages do not show that Clites made the same objection in a timely fashion when Ms. Mahaffey mentioned “the criteria in the Probate Code”—which he did not. On the contrary, Clites’s counsel questioned Ms. Mahaffey as to her familiarity “with the provisions of the Probate Code,” as well as “the California multi-party account law.” Following the offer of proof, the trial court may have approved the prosecutor to elicit testimony “to prove that Cox had unsuccessfully tried to use the Power of Attorney,” but the prosecutor elected not to do so via Ms. Mahaffey’s testimony. As for the notary’s testimony, her direct examination was concluded without a single objection from either defendant. Further, at no point did she venture into areas concerning the instrument’s meaning or powers.
Once the document itself became relevant, the circumstances surrounding its execution and use became equally pertinent. And, it should be noted, both of these witnesses testified to the perceived absence of coercion, a point surely favorable to the defense.
The third witness about whom Clites complains was Detective Hosking. His testimony was far more extensive and, as defendants see it, far more damaging. Because of the importance of his testimony, we deal with it separately in the next section of this opinion.
The Trial Court Erred In Allowing The Investigating Officer To Offer Opinion Testimony About Whether Defendants Were Guilty Of The Crime Charged
On direct examination, Detective Hosking testified about his conversations with the defendants, following the trail of the checks, and defendants’ arrests. On cross-examination by Cox, Hosking was asked “Am I correct that either joint tenant has a right to withdraw any or all of the funds in that joint account?” Hosking answered, “Mr. Cox is acting with power of attorney as a fiduciary.” Clites’s attorney objected that the answer was “non-responsive” and moved to strike it. The court overruled the objection. Hosking then answered, “Yes. Either party can withdraw the funds.”
Cox’s attorney then asked, “So then where is a crime committed if he had a legal right to withdraw any or all of the funds and he acted within the law to withdraw those funds? Where is the crime committed?” Counsel for Clites objected that the question was argumentative. The objection was overruled. Hosking then answered, “Mr. Cox had on file with the bank a power of attorney with a fiduciary responsibility to act solely in the best interest of his mother. Withdrawing $108,000 from her bank account and holding it from her is not in her best interest. It’s a simple theft of the money.”
Counsel for Cox then asked Hosking “How did you come to the conclusion that he used the power of attorney to transfer these funds from his mother’s account into his account?” Clites’s attorney objected on the grounds of “Foundation. Hearsay.” The objections were overruled, and the examination by Cox continued. Minutes later, Cox’s attorney asked Hosking “What else—what other evidence did you have that a crime had been committed, if any?” Hosking answered, “Conversation with Mrs. Shelton.” Cox’s attorney then asked if Ms. Shelton had told Hosking that “she was out of it” and “in no man’s land” when she executed the power of attorney and the funds were transferred out of her account. The prosecutor’s hearsay objections were overruled, and Hosking answered.
Cox’s attorney continued to press about Hosking’s reasoning for the conclusions that a crime and been committed, and that the crime was fraud. The court overruled objections by Clites and the prosecutor that the questions were argumentative or called for a legal conclusion. Hosking testified that one of the reasons for his conclusions was that “Mr. Cox abused the authority or assumed authority of power of attorney.”
Counsel for Clites began his cross-examination by exploring Hosking’s recollection of Ms. Shelton’s memory and mental state when he spoke to her. The remainder of Clites’s cross-examination dealt with Hosking’s investigation. At one point, Hosking was again asked about how he concluded that “a crime had been committed.”
On redirect, the prosecutor asked Hosking “could you explain to the jury what is meant by the term, ‘undue influence’?” Over Clites’s “Foundation. Improper opinion” objections, Hosking answered: “Undue influence is a set of circumstances or facts that causes a person who is somewhat at risk to act or fail to act in their own best interest.” The prosecutor then asked whether Shelton “would be a vulnerable target of such influence?” The court overruled the objections of “Improper opinion. Leading” by Clites’s attorney. Hosking answered, “I believe so.” When the prosecutor asked about “the significance of a durable power of attorney,” the court overruled Clites’s objections of “Legal conclusion . . . . Improper lay opinion” on the ground that Hosking had “testified to that earlier.”
The prosecutor then asked about a person with a durable power of attorney acting in the person’s best interests. Clites’s objections of “Calls for a legal conclusion” were overruled, but the objection of “Improper legal conclusion. Calls for an ultimate conclusion” to another question was sustained. The prosecutor then asked “A durable power of attorney conveys a binding duty on the attorney, in fact, to act in the best interest of that person, is that right?” Clites objected on the grounds the question “Calls for ultimate conclusion. Legal Conclusion.” The court did not rule on the objection but called counsel for a sidebar. The prosecutor then asked Hosking a number of questions about his “training with respect to durable powers of attorney.” When the prosecutor again asked about acting “in the best interest of the person named,” Clites again objected “Improper expert opinion. Calls for a legal conclusion.” The objection was overruled, though Clites was allowed to voir dire Hosking.
The prosecutor then resumed her redirect examination: “Q. Detective Hosking, you indicated under cross-examination that the basis for your opinion that there was a crime committed in this instance is that there was a power of attorney in place; is that correct?
“A. Yes.
“Q. And so based upon that, you believed that there was a breach of fiduciary duty?
“A. Yes.
“Q. There was a crime committed?
“A. Yes.
“Q. What crime was that?
“A. Theft.”
At this point the court inquired of Clites’s counsel, “Any further questions for him?” Counsel responded, “Regarding this issue, no, Your Honor. I would ask to strike the testimony. There’s no evidence for this court or any law that suggests that breaching a fiduciary duty that someone establishes a crime. That’s a civil crime [sic.]
“THE COURT: I’m not certain there’s been any testimony that breach of a civil duty constitutes a crime.
“[THE PROSECUTOR]: Detective Hosking, you testified under cross-examination by Mr. Beeman [Cox’s Counsel] that the basis of your opinion that a crime [was] committed—one of the [bases] of your opinion was that there was a power of attorney in place; is that right?
“A. Yes.
“Q. What impact did that have in your determination that there was crime committed?
“A. That Mr. Cox and Mr. Clites had promised to act in the best interest of the victim, Mrs. Shelton, to use her funds solely for her benefit, and Mr. Cox had removed $108,000 from her account and converted it to his own use.
“Q. And what crime would that be?
“A. Theft from an elder. Theft from an elder by person in a position of trust.
“Q. And is that something that’s codified in Penal Code 368(d)?
“A. It is.
“Q. Are there various forms of thefts under California criminal law?
“A. Yes.
“Q. Is another form of theft, theft by false pretenses?
“A. Yes.”
Moments later, the prosecutor returned to the subject:
“Q. You’re aware that California criminal law punishes theft; isn’t that right?
“A. Yes.
“Q. That was your conclusion to one of the crimes that was committed here?
“A. Yes.
“Q. I believe you also testified that there was fraud?
“A. Yes.
“Q. And both of those are penalized under California criminal law; isn’t that correct?
“A. Correct.”
Counsel for Clites again moved to strike Hosking’s testimony because “It’s . . . allowing the officer to give an ultimate opinion on an issue of fact that should be for the jury. [¶] . . . [¶] That he believes that theft and fraud were committed.” The court denied the motion.
It is important to note that at the time Hosking testified, defendants were also being tried for theft as well as violating section 368(d). However, the theft charges were dismissed at the end of the day on which Hosking testified.
Clites contends that Hosking should not have been allowed to testify regarding legal issues, legal definitions, and most importantly, whether defendants were guilty of the crimes charged. We agree.
The Attorney General attempts to defend the trial court by arguing it was doing nothing more than permitting an expert to testify regarding concepts that were beyond the common experience of the jury (Evid. Code, §§ 800-801), attempting to analogize what happened here with admission of gang expert testimony, how bookmakers operate, and what are burglary tools. The Attorney General’s effort is not persuasive. Hosking’s testimony stands on a qualitatively different plain.
“Early in our state’s judicial history our Supreme Court held the definition of a statutory term is a matter of law on which the court should instruct the jury; it is not a subject for opinion testimony. (People v. Carroll (1889) 80 Cal.153, 158; People v. Rose (1890) 85 Cal. 378, 382; People v. Gosset (1892) 93 Cal. 641, 645-646.) As an appellate court has more recently noted, ‘It is the court and not the witness which must declare what the law is, not being within the province of a witness, for example, to testify as to what constitutes larceny . . . .’ (People v. Clay (1964) 227 Cal.App.2d 87, 98.)
“There are two reasons why opinion evidence on the meaning of a statute is inadmissible. First, as noted in People v. Carroll, supra, 80 Cal.153, leaving the definition of statutory terms to be proved or disproved in every case ‘would lead to great uncertainty in the administration of justice.’ [Citation.] Second, it is the duty of the trial judge to instruct the jurors on the general principles of law pertinent to the case (People v. Daniels (1991) 52 Cal.3d 815, 885); therefore the jury has no need for such opinion evidence from the witness.” (People v. Torres (1995) 33 Cal.App.4th 37, 45-46 (Torres).)
And on point here, Torres also held that “the same rationale which prohibits the witness from expressing an opinion on the meaning of statutory terms . . . also prohibits the witness from expressing an opinion as to whether as crime has been committed.” (Torres, supra, 33 Cal.App.4th 37, 47.) Finally, Torres held that opinion testimony may not encompass the defendant’s guilt or innocence. (Id. at pp. 46-47.) On this particular point, no question can be entertained because our Supreme Court, citing Torres, has recently held “A witness may not express an opinion on a defendant’s guilt.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Although we hold that error occurred, we do not agree with Clites’s perfunctory assertion that such error is of federal constitutional dimension. On this point we agree with the Attorney General that the error is a simple misapplication of our state’s ordinary rules of evidence, to be evaluated according to the state standard for harmless error. (People v. Boyette (2002) 29 Cal.4th 381, 426, 427-428.) We will defer examining whether this error was prejudicial to our final discussion, post.
The Trial Court Did Not Err By Instructing The Jury With CALCRIM Nos. 1804 And 301
Section 368(d) is, in plain effect, an incorporation by reference of “any provision of law proscribing theft, embezzlement, forgery or fraud . . . with respect to property . . . .” (See People v. Brock (2006) 143 Cal.App.4th 1266, 1281, italics omitted.) There is some redundancy because in California the crime of theft “includes the crimes of larceny, embezzlement, larceny by trick and device, and obtaining property by false pretenses.” (People v. Creath (1995) 31 Cal.App.4th 312, 318.) The crime of theft by false pretense is governed by section 532, which penalizes any person “who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any person of money, labor, or property . . . .”
This type of theft is also subject to a distinct evidentiary requirement: “Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any labor, money, or property . . . or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum therefore is in writing, subscribed by or in the handwriting of the defendant, or unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.” (§ 532, subd. (b), italics added.)
As previously mentioned, the trial court instructed the jury with CALCRIM 1804 on this requirement. It also instructed the jury with CALCRIM 301, that “the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence.” Cox contends that these instructions are conflicting, with 301 diluting 1804. We are not persuaded.
Although there is no direct precedent on this point, we believe there is a highly persuasive analogy. The Supreme Court has repeatedly considered, and rejected, claims that CALJIC No. 2.27—the equivalent of CALCRIM 301—also conflicted with the CALJIC instructions on the need for corroboration of the testimony of an accomplice. The court has consistently held that there was no error, reasoning that, looking to the instructions as a whole, reasonable jurors “would have recognized CALJIC No. 2.27 as setting forth the general rule and the [instruction] on accomplice testimony as an exception to it.” (People v. Andrews (1989) 49 Cal.3d 200, 216-217 and decisions cited.) The court also looked to closing arguments to see whether the jury was “misled as to the need for corroboration.” (People v. Chavez (1985) 39 Cal.3d 823, 831.)
The two CALCRIM instructions here stand in precisely the same relationship as the two CALJIC instructions. There is consequently no reason in logic why the same relationship should not be posited. Moreover, the two witness requirement of CALCRIM 1804 corroboration requirement was mentioned in closing argument by the prosecutor and counsel for Clites. In these circumstances, we conclude that was no error.
The Trial Court Did Not Err In Refusing The Proposed Special Instructions
The trial court gave this instruction:
“If a defendant obtained property under a claim of right, he did not have the intent required for the crime of theft. . . . [T]he defendant obtained property under a claim of right if he believed in good faith that he had a right to the specific property or a specific amount of money and he openly took it, in deciding whether the defendant believed that he had a right to the property and whether he held that belief in good faith, consider all the facts known to him at the time he obtained the property along with all the other evidence in the case. [¶] A defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if a defendant was aware of facts that made the belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] The claim of right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal. If you have a reasonable doubt about whether the defendant had the intent required for theft, you must find him not guilty of theft from an elder or dependent adult.”
The trial court declined to give this special instruction requested by Clites:
“If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny or theft, although his claim is based on a misconception of the law or of his rights under it. A person’s knowledge of adverse claim to the property by another does not negate the existence of good faith. [¶] This defense is not available to one who proffers such defense as a cover for the knowledge such taking was felonious and only applies where such belief is honest and held in good faith by the defendant. [¶] If you find a reasonable doubt whether Mr. Clites accepted money from Mr. Cox with a bona fide, honest, good faith belief that the money was the product of a legal transaction, you must find him not guilty of larceny or theft.”
The court further instructed the jury that “A joint account is an account which, by the terms of the contract forming the account makes all funds payable on request to one or more of the parties to that account.” But the court declined to use a special instruction proposed by Clites that would have added the following: “If you find a reasonable doubt whether the account formed by Lillian Shelton and Mark Cox on April 30, 2005 at the Travis Credit Union was a joint account and that Mark Cox’s withdrawal of funds was subject to the terms of the joint account, then you must find the defendant not guilty of theft.”
Clites contends that it was error to deny his requested “pinpoint” instructions. He also argues that trial court erred when it “failed to instruct on the definition of consent, a concept central to both prosecution and defense. There was no error.
“Upon request, a trial court must give jury instructions ‘that “pinpoint[] the theory of the defense,” ’ but it can refuse instructions that highlight ‘ “specific evidence as such.” ’ [Citations.] Because the latter type of instruction ‘invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,’ it is considered ‘argumentative’ and therefore should not be given.” (People v. Earp (1999) 20 Cal.4th 826, 886.) A pinpoint instruction may also be properly refused if it is redundant and merely restates other given instructions. (E.g., People v. Moon, supra, 37 Cal.4th 1, 30; People v. Coffman and Marlow, supra, 34 Cal.4th 1, 100.)
Regarding the given and refused instructions on claim of right, frankly there does not appear to be any appreciable substantive difference between them. Indeed, Clites does not identify a specific aspect where his was superior. There was consequently no error in refusing it. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 100.) As for the portion of the joint account instruction, it clearly crossed the line into being argumentative. It did not merely invite the jury to draw an inference favorable to Cox (and therefore to Clites), it virtually ordered the jury to acquit. It too was properly refused. (People v. Earp, supra, 20 Cal.4th 826, 886.) As for the issue of consent, it gets but a single line in Clites’s brief, and is not accompanied by legal authority to support the claim. The claim may be rejected on this basis alone. (People v. Stanley (1995) 10 Cal.4th 764, 793.) We also reject it on the merits.
Because Clites appears to treat the issue of consent and the pinpoint instructions in a single argument, it is possible he views the issue of consent as adequately addressed by his proposed special instructions. If so, the preceding discussion suffices to dispose of it. We further note that Clites did not offer an instruction on consent, nor does he identify a standard CALCRIM instruction covering the issue of consent that the court should have used. The reason seems obvious: “When a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.” (People v. Bonin (1988) 46 Cal.3d 659, 698; accord, People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.) There is thus a strong basis for concluding that consent is not such a technical term, but one of common understanding.
That conclusion is fortified by consulting statutes and CALCRIM instructions. As to the former, for example, there is this: “In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue ‘consent’ shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Pen. Code, § 261.6.) This appears to be a codification of the common understanding of the term. Far more common are provisions simply defining crimes done “without the consent” of the victim. (E.g., §§ 314, 466.7, 602.5, subd. (a), 631, 632, 647.6, subd. (b); Evid. Code, § 1108, subds. (d)(1)(C)-(D); Veh. Code, § 10851, subd. (a).) The same is true for instructions in criminal cases. (See, e.g., the use notes to CALCRIM Nos. 1000, 1194, 1203, 1800.)
This statute deals with sex crimes, and we are aware that in that context there is a “distinction between actual consent and legal consent.” (People v. Giordano (2000) 82 Cal.App.4th 454, 460.) This distinction might have figured at the trial, but only if Ms. Shelton’s competence to give her consent was challenged by the defense. However, as previously mentioned, defendants deliberately and studiously avoided going down that road.
In light of the foregoing, we conclude that the partial refusal of the proffered special instructions was not error, nor was the trial court obliged to provide sua sponte a definition of consent.
The Trial Court Erred In Not Instructing On Legal Definitions And Principles Closely Connected To The Evidence
Clites frames his final argument as follows: “Because the jury was provided with testimony and argument about the legal effect of a signed power of attorney, the court had a sua sponte duty to instruct the jury as to the applicable legal definitions.” On this point, we agree with Clites.
The case against defendants was built around the power of attorney that Ms. Shelton executed in their favor. Without it, Cox would not have been able to move Shelton’s money into the joint account he set up with her. Without access to the joint account, Cox would not have been able to write the checks to himself and Clites. In short, all went back to the power of attorney.
Once the existence of the power of attorney was established, the issue immediately developed into the issue of what duties it imposed upon Cox and Clites. Detective Hosking testified that the duties were “fiduciary,” and required defendants “to act in the best interests of the victim, . . . to use her funds solely for her benefit . . . .” In her closing argument, the prosecutor avoided using the term “fiduciary,” but she adopted Hosking’s “best interests of the victim” standard. As the prosecutor put it, “the power of attorney, it’s very significant, because . . . that meant they had to act in her best interest.” The power of attorney was the “false token” needed for larceny by false pretense: “It’s a writing, and it conveyed upon the defendants a duty to act in the best interest of the victim.” (Italics added.) From there, the prosecutor went on, the “joint account had been fraudulently created because Ms. Shelton was relying on [the] power of attorney, she was relying on inherent trust in these two defendants when she made that transfer.” (Italics added.) After argument was concluded, but before the jury was instructed, counsel for Clites asked that the jury be instructed “that there is no legal provision that establishes a mandatory fiduciary duty.” After doing some brief research, the court concluded that the jury could not be instructed as Clites requested, because “there are fiduciary duties that are undertaken by someone with a power of attorney.” (Italics added.)
The trial court was correct on this. A person with a power of attorney is a fiduciary, and does owe fiduciary duties to his or her principal. (Prob. Code, § 39; Cutler v. State Bar of California (1969) 71 Cal.2d 241, 251; Rubidoex v. Parks (1874) 48 Cal. 215, 218-219; Heney v. Heney (1926) 80 Cal.App. 301, 306.) The fiduciary relationship is no stranger to the crime of larceny. It is most commonly found in cases of embezzlement, which is founded upon breach of trust or fiduciary duty to wrongfully acquire property or money. (Pen. Code, §§ 503, 506 & 507; People v. Talbot (1934) 220 Cal. 3, 14-15; 2 Witkin & Epstein Cal. Criminal Law (3d ed. 2000) Crimes Against Property, §§ 28-29, pp. 48-52.) But defendants were not charged with embezzlement.
Some courts have held that a fiduciary relationship is an essential element of embezzlement. (People v. Parker (1965) 235 Cal.App.2d 100, 109; People v. Darling (1964) 230 Cal.App.2d 615, 621.)
On appeal, Clites reframes the instructional point he made at trial. Now he claims the trial court was under the unique responsibility in a criminal trial not to rely on the attorneys for instructions, but in unusual circumstances to assume the responsibility on its own initiative to craft instructions specific to the case before it—to instruct sua sponte. “Even absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law are those that are commonly connected to with the facts adduced at trial and that are necessary for the jury’s understanding of the case.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) This independent duty is considered so important that the defendant’s silence—even active opposition—will not relieve the court of fulfilling it. (People v. Valdez (2004) 32 Cal.4th 73, 115.)
For present purposes, we accept that the holder of a power of attorney can be guilty of theft by false pretenses. Precedents to this effect are numerous. (E.g., In re Silverton (2005) 36 Cal.4th 81 [attorney used clients’ power of attorney to settle lawsuit to convert funds]; People v. Caruso (1959) 176 Cal.App.2d 272 [defendant used power of attorney to obtain money from sale of car]; People v. Christenbery (1959) 167 Cal.App.2d 751 [same]; People v. Sewall (1928) 90 Cal.App. 476 [defendant used power of attorney to sell victim’s property].) The scope of application for this manner of victimization was undoubtedly widened with passage of section 368, which is predicated upon the victim being an “elder or dependent adult.” (See § 368, subd. (a); Welf. & Inst. Code, § 15610.30.)
The subject of physical and financial abuse of elders has received considerable attention from the Legislature. (See Stats. 2006, ch. 491, § 2 [legislative findings for the Professional Fiduciaries Act [Bus. & Prof. Code, § 6500 et seq] noting increasing scope for “financial abuse” of “people who are unable to take care of themselves or their property by . . . fiduciaries”]; Stats. 2006, ch. 493, § 2 [same as to legislative findings for the Omnibus Conservatorship and Guardianship Reform Act]; Stats. 2000, ch. 813 [adding Prob. Code, § 2950 to protect “mentally impaired elder adult victims of financial abuse”]; Stats. 2000, ch. 97 [amending Evid. Code, § 1109 to permit proof of prior acts of “abuse of an elder or dependent person,” including “financial abuse”]; Welf. & Inst. Code, § 15610.30 [defining “financial abuse” of elder or dependent adult for purposes of Elder Abuse and Dependent Adult Civil Protection Act,” Welf. & Inst. Code, § 15600 et seq.].)
As repeatedly shown, the power of attorney was central to the case against defendants. Having allowed the subject to be put before the jury, particularly after Detective Hosking’s opinion testimony, the court could not simply cast the jury adrift. The court did not do so concerning the joint account, which was far less significant than the power of attorney that allowed the joint account to be created, thus providing Cox with ready access to the funds transferred solely by reason of his having the power of attorney. The power of attorney was second only to Ms. Shelton’s relationship to Cox, the dominant subject of testimony and argument heard by the jury. In short, the power of attorney qualified as general principle of law that was “ ‘ “closely and openly connected with the facts before the court.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We are aware that this is one of the most difficult tasks assigned to trial courts, and only then in criminal cases. To discharge this task requires a true perspective that will vary from case to case depending on the evidence. The court will sometimes have to act in the face of active opposition from one or both sides. It will be particularly onerous in a situation like this, where old and new must be harmonized. Nevertheless, it must be done.
Because this court does not have that perspective, we are cautious to offer suggestions as to what the sua sponte instructions should have encompassed. However, at a minimum, we agree with Clites that a definition of a power of attorney would have been appropriate. To bring it into parity with what the jury was told about the joint account, instruction about the powers of the attorney-in-fact would also seem in order. Lastly, it would also seem logical to pair the affirmative powers of the holder of a power of attorney with the corresponding duties attending that instrument.
This is not to say that additional instructions would have been favorable only to one side. For example, if the powers were explained, the jury could have been authoritatively told that instrument Ms. Shelton executed gave her attorney-in-fact the power to make gifts, which would have assisted the defense, particularly Cox. On the other hand, instructions on the duties would have vindicated Detective Hosking’s testimony that Cox and Clites were under fiduciary duties to Ms. Shelton. (See Lee v. Yang (2003) 111 Cal.App.4th 481, 492 [“a withdrawing party may have fiduciary responsibilities with respect to . . . funds deposited in the joint account”]; Prob. Code, §§ 5124, 5204.)
The Errors Of Admitting Improper Testimony And Failure To Instruct Require Reversal
We now consider whether the error of admitting the improper opinion evidence of Detective Hosking, together with the failure to instruct on the power of attorney, were prejudicial. We conclude they were.
Detective Hocking was already established as a sympathetic figure, one who had tried to mediate the dispute to avoid criminal charges if defendants simply returned the money. He was then treated as a virtual expert, bringing an additional dimension of credibility to his testimony. Clothed with that status, he proceeded to inject wholly improper opinion evidence about the legal duties imposed upon defendant by the power of attorney Ms. Shelton executed, repeatedly characterizing those duties as “fiduciary,” and testifying that Ms. Shelton was the victim of “undue influence.” Neither of these terms was ever explained to the jury in instructions.
These are not simple, self-explanatory concepts. “Our Supreme Court has acknowledged that it is difficult to enunciate the precise elements required to show the existence of a fiduciary relationship.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631, citing Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221.) This court has noted the vagueness of the concept. (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272.) And to judge from a very recent decision, the Supreme Court continues to grapple with the details of fiduciary relationships. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375.) Fortunately, here the fiduciary relationship issue is simple, because it is imposed as a matter of law by Probate Code section 39. But “the scope of the fiduciary duties imposed by law” presents “pure issues of law” (see Enea v. Superior Court (2005) 132 Cal.App.4th 1559, 1563; see also Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086), appropriate for guidance by the court’s instructions. (See Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 763-764.) None were forthcoming.
Undue influence is little better. For purposes of civil law, “Undue influence . . . [¶] is a shorthand legal phrase used to describe persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment. [Citation.] The hallmark of such persuasion is high pressure, a pressure which on mental, moral or emotional weakness to such an extent that it approaches the boundaries of coercion. In this sense, undue influence has been called overpersuasion. [Citation.] Misrepresentations of law or fact are not essential to the charge, for a person’s will may be overborne without misrepresentation. By statutory definition undue influence includes ‘taking an unfair advantage of another’s weakness of mind; or . . . taking a grossly oppressive and unfair advantage of another’s necessities or distress.’ (Civ. Code, § 1575.) . . . .
“[¶] . . . [¶] In essence, undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a servient subject. In combination, the elements of undue susceptibility in the servient person and excessive pressure by the dominating person make the latter’s influence undue, for it results in the apparent will of the servient person being in fact the will of the dominant person.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 130-131.)
Detective Hosking also testified that Cox had “a position of trust,” that Cox had “abused” his authority under the power of attorney, and also that he “breached” the fiduciary duties he owed to his mother by not acting in her “best interest.” This testimony not only emphasized the legal concepts already introduced by the detective, but added an overlay of related terminology—with no explanation of these additional terms even provided to the jury. All that was bad enough.
Armed with these undefined legal concepts, Detective Hosking went on to repeatedly express his opinion that what defendants had done was “theft” and “fraud.” On redirect examination by the prosecutor, Hosking passed the point of no return: “Simple theft” became “Theft from an elder. Theft from an elder by [a] person in a position of trust,” “something that’s codified in Penal Code 368(d).” As already established, the detective could not testify as to the meaning or application of a statute. (Torres, supra, 33 Cal.App.4th 37, 45-46.) Nor could he express his opinion that a crime had in fact been committed. (Id. at pp. 47-48.) Even more emphatic must be the conclusion that undeniable error occurred when the Detective Hosking flat out testified to the jury that defendants were guilty of the charges brought against them. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 77; Torres, supra, at pp. 46-47.)
The evidence against defendants had the amplitude required to withstand a challenge to its sufficiency, but it can hardly be called overwhelming. On the other hand, the defense positions were not risible. If Cox correctly interpreted his mother’s desire that the insurance money be put to charitable uses, the withdrawal and dispersal of those funds was in keeping with that desire—and thus not criminal. If what Cox did was lawful, it was no less lawful for Clites to receive the money. Ultimately, this case came down to a credibility contest: did the jury believe Ms. Shelton or Cox as to her expressed wishes when the power of attorney was executed? The circumstantial evidence was about evenly split. While the prosecution could point to the opening of various accounts and moving the funds about as partaking of a shell game to avoid detection, defendants could neutralize it by relying on the testimony of impartial witnesses that neither the execution of the power of attorney or the moving of Ms. Shelton’s fund into the joint account had any appearance of coercion or lack of voluntariness.
With the evidence thus tending to equipoise, the impact of any error would not have to be great to qualify as prejudicial. The wholly improper testimony of Detective Hosking that defendants were guilty as charged was, by itself, sufficient to shift the balance. The detective’s testimony served as ostensible corroboration not only of the validity of the charge brought against defendants, but also of the detective’s seemingly disinterested conclusion that they were in fact guilty.
The situation was aggravated when the detective’s improper opinions were allowed to stand without being legally channeled by instructions from the court. It matters not that some of Hosking’s opinions, such as the existence of fiduciary duties incumbent upon defendants when they became Ms. Shelton’s attorneys-in-fact, may have been legally sound. It was the responsibility of the court to do what it said would—namely, instruct on the law. It gave some instruction on the joint account, but none on the power of attorney. There was no guidance provided to accompany Detective Hosking’s testimony about undue influence having exerted on Ms. Shelton. In light of the obviously problematical state of Ms. Shelton’s memory, this omission looms particularly large in consequence, because it would feed into the prosecutor’s theory that Cox had exceeded the scope of her consent to the transfer of the money.
We have paid particularly close attention to the record, especially Detective Hosking’s testimony and the court’s instructions. The errors are sufficient to undermine confidence in the soundness of the verdict. We cannot treat them as harmless because we believe there is a reasonable probability that in their absence defendants would receive a more lenient result. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d, 818, 836.)
We are not overlooking the fact that only Clites preserved for appeal his objections to Detective Hosking’s improper testimony. However, rather than go through what would be a pointless ineffective assistance of counsel analysis concerning Cox’s trial attorney, we treat Cox as the beneficiary of the efforts of his codefendant’s counsel. Also, because Clites’s conviction for conspiring to violate section 368(d) is inextricably tied to the section 368(d) convictions of both defendants, it is inconceivable that it could survive on its own. Proof of this can be seen in the fact that more than half of the 11 overt acts alleged were predicated on Ms. Shelton’s money or property as having been “stolen.”
DISPOSITION
The judgments of conviction are reversed.
We concur: Haerle, Acting P.J., Lambden, J.
The prosecutor subsequently amended each of the informations to add a count in which it was alleged that defendants also committed grand theft of Ms. Shelton’s property (§ 487, subd. (a)). These charges were dismissed before the case was sent to the jury.